512(f) Plaintiff Can’t Get Discovery to Back Up His Allegations of Bogus Takedowns–Ouellette v. Viacom

Ouellette sued Viacom for sending allegedly bogus takedown notices for videos he posted to YouTube. His case has gone nowhere. In 2011, his ADA claims were tossed. Then, earlier this year, the magistrate judge rejected his 17 USC 512(f) claim. In this ruling, the judge adopts the magistrate’s report and closes the case.

The disposition of Ouellette’s 512(f) claim is hardly surprising. Putting aside his status as a pro se, even well-lawyered 512(f) plaintiffs rarely make any progress in court after the Ninth Circuit Rossi case required subjective bad faith as an element of a 512(f) claim. With this insurmountable mountain in his way, Ouellette never really had a chance.

Like so many plaintiffs, Ouellette argued that he can’t fully allege Viacom’s bad scienter until he gets discovery to see what they did and said. Not surprisingly, the court doesn’t want to hear it:

Contrary to Ouellette’s assertion that interrogatories are the correct means for him to discover Viacom’s intent in issuing its takedown notice to Youtube.com, § 512(f) requires Ouellette to allege facts, at the pleading stage, that demonstrate that Viacom acted without a good-faith belief.

Stated differently, unless the 512(f) plaintiff has smoking-gun evidence of the copyright owner’s bad intent before filing the complaint, the plaintiff has virtually no chance of getting a 512(f) claim into discovery.

The court rejects Ouellette’s other contentions, including:

* Viacom’s takedowns of other users’ content is relevant to his situation. The court only considers Viacom’s scienter with respect to the takedowns of Ouellette’s content.

* Viacom’s failure to sue Ouellette after the takedowns tacitly admitted that Ouellette had engaged in fair use. Obviously, Viacom could have many legitimate reasons why it didn’t sue Ouellette for his uploads.

Ouellette was a lousy test case for 512(f), but his case reminds us that 512(f) plays effectively no role in 17 USC 512’s overall design of checks-and-balances.